ON-LINE STUDENT PUBLICATIONS:
DO STUDENT EDITORS AT PUBLIC UNIVERSITIES
SHED THEIR FIRST AMENDMENT RIGHTS IN CYBERSPACE?
by
Joey Senat
Doctoral Student
School of Journalism and Mass Communication
The University of North Carolina at Chapel Hill
1849 Stratford Road
Burlington, NC 27217
910-584-6172
[log in to unmask]
Submitted to the Law Division
Association for Education in Journalism and Mass Communication
Anaheim, CA: August 1996
ABSTRACT
Senat, Joey. On-line Student Publications: Do Student Editors at
Public Universities
Shed Their First Amendment Rights in Cyberspace? Association for
Education in Journalism and Mass Communication, Anaheim, CA, August 1996.
As the popularity of on-line student newspapers and literary
magazines increases, so does the likelihood that these publications will be
censored by college administrators. The big question is: Once words are
converted from newsprint to digital format, does their First Amendment status
change? This research paper examines a narrower question: Do First Amendment
protections granted to student print publications at public colleges and
universities apply to their on-line counterparts? The paper addresses that
question in four sections. Part I examines the federal and state court decisions
establishing First Amendment protections for student print publications and
applies these to on-line student publications. Part II examines Federal
Communications Commission rulings and court decisions affecting the rights of
student broadcasters and applies these to on-line student publications. Part III
explores public university liability for libel and privacy invasion by the
student press, two court decisions regarding on-line service liability for
potential libel, and the implications of these decisions for universities
controlling the content of on-line student publications. Part IV reviews several
rationales for extending First Amendment protections to all cyberspace
publications.
The paper concludes that on-line student publications at public
colleges and universities are entitled to the same First Amendment protections
afforded to their print forerunners. School officials should be allowed to
censor only to meet federal law regarding obscenity and indecency on the
Internet. Exercising editorial content over all the content of these on-line
publications is not permissible, and, in fact, such control would seem to place
schools at a greater risk of assuming liability for tortious statements made in
those publications.
ON-LINE STUDENT PUBLICATIONS:
DO STUDENT EDITORS AT PUBLIC UNIVERSITIES
SHED THEIR FIRST AMENDMENT RIGHTS IN CYBERSPACE?
Student editors at Northwestern Michigan College were preparing to
place their newspaper and literary magazine on the public school's World Wide
Web page in spring 1995 when college officials halted the plan. The President's
Council, which at that time was raising money for the school's programs, felt
that a partially nude photograph in the literary magazine would cause too much
controversy.[1] Administrators later relented, and policies for making the
publications available through the college's World Wide Web[2] home page were
approved by the college president in December 1995.[3] Under the policies,
school officials agreed that access for students, faculty and staff to the
college's "electronic educational resources" would be "conducted with freedom
from censorship" consistent with the First Amendment.[4]
On-line Student Publications
The situation at Northwestern Michigan College is an example of a
restriction placed on an electronic publication that would not have been
permissible for its print counterpart. The issue of First Amendment protections
for electronic versions of student publications[5] is likely to become more
pressing as more student journalists find their way onto the Internet. Student
editors have proven more receptive than their older, professional counterparts
to publishing electronically.[6] More than 135 college newspapers, for example,
already are on-line.[7] And in what some analysts believe may be a move
foretelling the future for all newspapers, Temple University's The Temple News
in early March 1996 began "phasing out the paper" in its newspaper, changing its
print version from a daily to a weekly in favor of a Tuesday through Friday
on-line version.[8]
Student editors, however, are finding that "putting their
publications on-line increases readership but also creates new problems with
administrative censorship."[9] Mike Hiestand, an attorney for the Student Press
Law Center, said the center has received telephone calls from colleges "asking
about proposed policies for on-line student media that would restrict content --
particularly advertising, for some reason -- not restricted in a print
version."[10] He said that while the policies were still in just the "talking
stage," he expects that to "change all too quickly."
The big question is: Once words are converted from newsprint to
digital format, does their First Amendment status change?[11] The purpose of
this paper is to examine a narrower question: Do First Amendment protections
granted to student publications at public colleges and universities apply to
their on-line counterparts?
The paper will address that question in four sections. Part I will
examine the federal and state court decisions establishing First Amendment
protections for student print publications and apply these to on-line student
publications. Part II will examine Federal Communications Commission rulings and
court decisions affecting the rights of student broadcasters and apply these to
student on-line publications. Part III will explore public university liability
for libel and privacy invasion by the student press, two court decisions
regarding on-line service liability for potential libel, and the implications of
these decisions for universities controlling the content of on-line student
publications. Part IV will review several rationales for extending First
Amendment protections to all cyberspace publications.
This paper concludes that on-line student publications at public
universities and colleges are entitled to the same First Amendment protections
afforded to their print forerunners. School officials should be allowed to
censor only to meet federal law regarding obscenity and indecency on the
Internet.[12] Exercising editorial control over all the content of these on-line
publications is not permissible, and, in fact, such control would seem to place
universities at a greater risk of assuming liability for defamatory statements
made in those publications.
I. FIRST AMENDMENT GUARANTEES EXTENDED
TO THE PUBLIC UNIVERSITY STUDENT PRESS
Even though the U.S. Supreme Court has not ruled directly on the
First Amendment protections of school-sponsored student publications at public
universities and colleges, some 60 federal and state court decisions[13] have
dealt with the struggle between students and administrators over matters
involving freedom of speech and expression at public institutions of higher
education.[14] The decisions have been nearly unanimous that the student
publication of a state-supported university is entitled to the First Amendment
protections afforded the commercial press, including freedom of expression for
the editors.[15] Courts specifically have declared that administrators may not
suspend an editor for publishing controversial articles,[16] suppress
objectionable material from publication,[17] withdraw or reduce financial
support because of the newspaper's offensive content,[18] or regulate content to
assure the compliance of printed material with "responsible freedom of the
press."[19] However, none stated the First Amendment rights of students as
succinctly as Louisiana Appeals Court Judge Jim Garrison's two-sentence
concurrence in Milliner v. Turner: "Even college students may speak, write and
publish freely."[20]
In 1972 and 1973, two U.S. Supreme Court decisions indicated the
importance the Court placed on First Amendment protections for college
students.[21] In Healy v. James, the Court unanimously concluded that the First
Amendment applies fully to the states and that "state colleges and universities
are not enclaves immune from [its] sweep. . . ."[22] In Healy, the president of
a Connecticut public college refused to recognize a radical student group as an
official student organization, which would have entitled the group to announce
its activities in the campus newspaper and post notices on the college bulletin
boards. The students argued that the denial violated their First Amendment
rights.
The Court sided with the students, noting that "the college
classroom and its surrounding environs is peculiarly the 'marketplace of ideas.'
"[23] Its own precedents, the Court said, "leave no room for the view that,
because of the acknowledged need for order, First Amendment protections should
apply with less force on college campuses than in the community at large. Quite
to the contrary, the vigilant protection of constitutional freedoms is nowhere
more vital than in the community of American schools."[24]
A year later, in Papish v. Board of Curators of the University of
Missouri, the Court applied similar reasoning to a case involving censorship of
a student journalist distributing an "underground" newspaper on a public college
campus.[25] The newspaper contained two features that the university deemed
"indecent." The front page included a reprint of a political cartoon depicting
policemen raping the Statue of Liberty and the Goddess of Justice; and a reprint
of an article concerning the acquittal of a New York man on charges of assault
and battery was headlined "Motherfucker Acquitted." The man belonged to the
group called "Up Against the Wall, Motherfucker."
Barbara Papish, a graduate journalism student at the University of
Missouri, was expelled from school for distributing the newspaper in the heart
of campus. In reversing a lower court ruling and ordering Papish reinstated, the
Court said, "We think Healy makes it clear that the mere dissemination of ideas
-- no matter how offensive to good taste -- on a state university campus may not
be shut off in the name alone of 'conventions of decency.' "[26] The Court also
noted that "the First Amendment leaves no room for the operation of a dual
standard in the academic community with respect to the content of speech."[27]
However, the case that "focused national attention" on the courts'
attitudes toward the student press, Dickey v. Alabama State Bd. of
Education,[28] had come five years earlier.[29] Gary Dickey, editor of the
student newspaper at Troy State University, was suspended from the school for
"insubordination" after he printed the word "Censored" in place of an editorial
he was ordered not to run by his adviser and the college president. Dickey had
wanted to publish an editorial critical of the governor and state legislature;
however, the college president had invoked a rule prohibiting editorials in the
newspaper criticizing those officials. Dickey refused to run an editorial titled
"Raising Dogs in North Carolina," which his adviser had provided as a substitute
for Dickey's. In ordering Dickey reinstated as a student, a U.S. district court
said:
It is basic in our law in this country that the
privilege to communicate concerning a matter of public
interest is
embraced in the First Amendment right relating to freedom of
speech
and is constitutionally protected against infringement by
state offici
als. Boards of education, presidents of colleges, and faculty
advisers
are not excepted from the rule that protects students against
unreasonable rules and regulations.
. . . .
. . . A state cannot force a college student to
forfeit his constitutionally protected right of freedom of
expression
as a condition to his attending a state-supported
institution. State
school officials cannot infringe on their students' right of
free and
unrestricted expression as guaranteed by the Constitution of
the
United States where the exercise of such right does not
materially and
substantially interfere with requirements of appropriate
discipline in
the operation of the school.[30]
The court held that the rule invoked against Dickey had nothing to do
with maintaining order and discipline among the students. Furthermore, the court
said, once college administrators elected to form a student newspaper, they
couldn't suspend or expel Dickey as a student for his conduct as a journalist
without violating his First Amendment rights.
Two years later, the U.S. District Court of Massachusetts used
similar reasoning when it said administrators could not require prior review of
articles by an advisory board, and that officials could not censor expression
they did not like.[31] In Antonelli v. Hammond, the court said:
We are well beyond the belief that any manner of
state regulation is permissible simply because it involves an
activity
which is a part of the university structure and is financed
with funds
controlled by the administration. The state is not
necessarily the
unrestrained master of what it creates and fosters. Thus in
cases
concerning school-supported publications or the use of
school facilities,
the courts have refused to recognize as permissible any
regulations
infringing free speech when not shown to be necessarily
related to the
maintenance of order and discipline within the educational
process.[32]
In Bazaar v. Fortune, the Fifth Circuit Court of Appeals enunciated
what are now the well-established rules concerning censorship of the college
press.[33] The court found (1) that the fact that a state university provided
funding, faculty or departmental advice, or campus facilities did not authorize
university officials to censor the content of a student publication; (2) that
individual four-letter words were insufficient reason to censor; (3) that the
state university could not be considered the same as a private publisher with
absolute arbitrary power to control content; (4) that the university, as an arm
of the state, could not make private publisher decisions about content; and (5)
that the university could not be held liable for the content of student
publications.[34]
However, courts have recognized a public college's interest in
maintaining order and discipline necessary for the success of the educational
process.[35] Not since the turbulent early 1970s, though, "has a court found
material in a college student publication to justify a school's claim of
material and substantial disruption of school activities."[36] Courts also have
held that maintaining the order necessary for educational activities is the
"only legitimate justification for censorship of student expression that is
otherwise constitutionally protected."[37] Courts have ruled censorship is not
justified even when the material might be considered obscene or offensive, is of
poor quality, or might be libelous.
In Antonelli v. Hammond, for example, the federal district judge
ruled that a school president could not withhold funding from the student
newspaper for reprinting an article by Eldridge Cleaver that included
"four-letter words." The court said, "Obscenity in a campus newspaper is not the
type of occurrence apt to be significantly disruptive of an orderly and
disciplined educational process."[38] College officials had not shown that the
harm from such language in a college setting outweighed the danger of censorship
to free expression, the court said.
If anything, the contrary would seem to be true.
The university setting of college-age students being exposed
to a wide
range of intellectual experience creates a relatively mature
marketplace for the interchange of ideas so that the free
speech
clause of the First Amendment with its underlying assumption
that
there is positive social value in an open forum seems
particularly
appropriate.[39]
In Bazaar v. Fortune, University of Mississippi officials had tried
to stop publication of a literary magazine because of "earthy language" in two
short stories.[40] The objectionable portions consisted of "four-letter words"
often referred to as obscenities, including one the Fifth Circuit Court of
Appeals in a footnote described as "literally referring to an incestuous son but
more commonly used as an abusive epithet."[41] The court, in noting that it was
satisfied the stories "do not meet the standard of legal obscenity," said
obscenity was not an automatic justification for a university to censor a
student publication.[42] In ruling that the university did not have the
authority to control the publication's content, the court said:
The University here is clearly an arm of the state
and this single fact will always distinguish it from the
purely
private publisher as far as censorship rights are concerned.
It seems
a well-established rule that once a University recognizes a
student ac
tivity which has elements of free expression, it can act to
censor
that expression only if it acts consistent with First
Amendment
constitutional guarantees.
. . . .
. . . Neither can a state university support a
campus newspaper and then try to restrict arbitrarily what it
may
publish, even if only to require that material be submitted
to a
faculty board to determine whether it complies with
"responsible
freedom of the press."[43]
In dismissing the university's arguments of "taste" and
"appropriateness," the court said:
We feel that we are past the point in this country
today where the mere use of any single word in a public arena
can be
immediately branded as so tasteless or inappropriate that its
use is
subject to unbridled censorship or restriction by government
author
ity. The short stories involved in this case, as noted,
contain the
word which has historically been viewed as the "worst"
obscenity. With
regard to this very four-letter word, the Supreme Court has
stated
that: "While the particular four-letter word being litigated
here is
perhaps more distasteful than most others of its genre, it is
nevertheless often true that one man's vulgarity is another's
lyric.
Indeed, we think it is largely because government officials
cannot
make principled distinctions in this area that the
Constitution leaves
matters of taste and style so largely to the individual."[44]
In Schiff v. Williams, the college's justification for punishing
student editors was not based on obscenity, but on the quality of the
newspaper.[45] The Florida Atlantic University president fired three editors of
the student newspaper because of poor grammar and spelling, "vilification and
rumor mongering," and editorials that had "degenerated into immature and
unsophisticated diatribes which reflect most negatively on the overall quality
of our student body."[46]
The Fifth Circuit Court of Appeals rejected the university's argument
that since the editors were state employees, "their free speech could be
restricted by their employers if this right was outweighed by a more significant
governmental interest -- in this case, the university's interest in a
publication that maintained high standards of grammar and literary value so as
to project a proper view of the university and its student body."[47]
The court said: "The right of free speech embodied in the publication
of a college student newspaper cannot be controlled except under special
circumstances. . . . [T]he 'special circumstances' relied on by the university
-- poor grammar, spelling and language expression -- could embarrass, and
perhaps bring some element of disrepute to the school; but, assuming the
president's assessment was correct, these faults are clearly not the sort which
could lead to significant disruption on the university campus or within its
educational processes."[48]
In Mazart v. State, the New York Court of Claims held that a public
university could not censor student copy prior to publication even to avoid
libelous material.[49] The same reasoning was followed the Louisiana Court of
Appeals in Milliner v. Turner, in which the court said that even the possibility
of libelous material did not outweigh the benefits of granting students their
First Amendment freedoms.
Words may be harsh by some standards, but taken in
context of the university community and its own publication,
and even
though they come perilously close to libel in its purest
sense, it is
still better to err on the side of the First Amendment
freedoms rather
than to stifle the creativity and criticisms of a student
publication
meant to encourage the development of writing skills and
student
expression in a learning environment.[50]
Federal courts have also indicated that advertising decisions --
which ads to accept or reject -- are content decisions within the purview of
student editors, not administrators or would-be advertisers. In Mississippi Gay
Alliance v. Goudelock, for example, the 5th Circuit Court of Appeals rejected a
homosexual group's attempt to force the Mississippi State University student
newspaper to publish the organization's advertisement because the editor's
decision constituted exercise of editorial control.[51] The court noted that
university officials could not have lawfully ordered the newspaper to publish
the organization's advertisement.[52]
In Sinn v. Daily Nebraskan, the Eighth Circuit Court of Appeals also
upheld a student newspaper's right to reject homosexual-related advertisements
on the basis that the decision had been made by the student editor, not
university officials.[53] The court agreed with the lower court that the Daily
Nebraskan operated like a private newspaper in its content decision-making
process. The district court had held:
The campus newspaper of a state-supported
university is entitled to the constitutional protections
afforded the
"press," including freedom of expression for the editors.
Editors
necessarily exercise subjective discretion in refusing or
accepting
proffered materials. The degree of discretion which editors
utilize in
rejecting advertisements is not distinguishable, under the
First
Amendment analysis, from that exercised over any other
submitted
matter.[54]
In Lueth v. St. Clair County Community College, a federal district
judge ruled that a community college's prohibition of an advertisement for a
Canadian nude dancing club in the student-run newspaper violated the editor's
First Amendment rights.[55] A school official said the ad was banned because it
was degrading to women, promoted underage drinking, and conflicted with the
college's educational mission and values.[56] The court ruled that the ban was
"not narrowly tailored" to serve those interests.[57] The court also held that
without advertising guidelines in place, the college would be subjecting the
newspaper to the "virtual unbridled regulatory authority" of school
officials.[58]
As courts have recognized First Amendment protections for newspapers
and a literary magazine, they have also indicated a willingness to extend
protection to other types of student publications. In Antonelli v. Hammond, a
U.S. district court said: "In the very creation of an activity involving media
of communication, the state regulates to some degree the form of
expression fostered. But the creation of the form does not give birth
also to the power to mold its substance.[59]
We are well beyond the belief that any manner of
state regulation is permissible simply because it involves an
activity
which is a part of the university structure and is financed
with funds
controlled by the administration. The state is not
necessarily the
unrestrained master of what it creates and fosters.[60]
The U.S. District Court of Colorado relied in part on Antonelli v.
Hammond two years later when it ruled in Trujillo v. Love that Southern Colorado
State University officials could not require student editors to submit
"controversial" material to their faculty adviser for prior approval.[61] The
court said: "The state is not necessarily the unfettered master of all it
creates. Having established a particular forum for expression, officials may
not then place limitations upon the use of that forum which interfere with
protected speech and are not unjustified [sic] by an overriding state
interest."[62]
In Bazaar v. Fortune, the Fifth Circuit Court of Appeals relied on
Antonelli v. Hammond in rejecting the University of Mississippi's distinction
between a newspaper and literary magazine. "We see no difference between this
and other University publications which the University concedes, quite correctly
in our opinion, that it cannot censor except within constitutional limitations.
The literary magazine, Images, is certainly within the broad class of
publications to which the broad rule enunciated in Antonelli was designed to
apply."[63]
Courts have also indicated that the First Amendment protections
extended to student editors are not diluted because non-students or off-campus
readers come into contact with the student publication. In Bazaar v. Fortune,
for example, the court rejected university officials' argument that they had the
right to prevent activities they felt might lead to criticism of the school by
outsiders. The Fifth Circuit Court of Appeals said:
[W]e can only reiterate that speech cannot be
stifled by the state merely because it would perhaps draw an
adverse
reaction from the majority of people, be they politicians or
ordinary
citizens, and newspapers. To come forth with such a rule
would be to
virtually read the First Amendment out of the Constitution
and, thus,
cost this nation one of its strongest tenets. It would be
unthinkable
to say that the University of Mississippi could censor and
forbid
publication of an article in its law school journal on the
grounds
that the article concerned some sensitive issue, such as
forced busing
or abortion, which, because of the resolution reached in the
article,
the University determined would create an overwhelmingly
adverse
reaction among members of the bar and the public. The First
Amendment
simply took the power to make such judgment out of the hands
of the
state.[64]
The court also noted that the objectionable words at issue were "not
being forced on an unwilling audience through public display. The nature of the
language is no longer really that unusual in current literature, films, and
conversation -- especially among the young. The trend to its use, both in spoken
and written arts, while not to be commended, certainly must be recognized." [65]
Nor was the viewing of objectionable material by non-students,
including high school students, a factor in the U.S. Supreme Court's decision in
Papish. Papish handed out the "underground" newspaper near the Memorial Arch,
through which -- the court noted -- "pass parents of students, guests of the
University, students, including many persons under 18 years of age and high
school students."[66]
It seems, then, that student editors are entitled to First Amendment
protections regardless of who might read their publications. This has special
significance for on-line student publications. Public college administrators
might argue that an on-line student publication's ability to collapse time and
space poses special problems that justify censorship. For example, a publication
on the World Wide Web could transmit material -- including language or pictures
deemed by school officials as obscene or vulgar -- off campus to non-students.
However, courts have ruled that public universities are not justified in
censoring student publications when the information is considered obscene or
offensive, even when it might be viewed by non-students. Nor would the school be
justified in censoring the on-line student publication to sidestep criticism of
the college or to avoid a public controversy -- as Northwestern Michigan College
attempted to do.
College officials also might argue that on-line student publications
are not entitled to First Amendment freedoms. However, a student newspaper or
literary magazine in cyberspace is simply another means of transmitting the
publication to readers. As such, it can reasonably be expected to fall within
the the courts' broad view of what is a student publication. Federal and state
courts have clearly stated that once a public college has created a form of
student expression, it cannot control the content, except to maintain the
discipline and order necessary to ensure educational success.
II. FIRST AMENDMENT RIGHTS OF
STUDENT BROADCASTERS AT PUBLIC COLLEGES
Under the Telecommunications Act of 1996,[67] Congress is treating
the Internet -- at least for the purpose of regulating indecent and obscene
material -- as a broadcast medium subject to Federal Communications Commission
regulation. In essence, Congress appears to be applying broadcast indecency law
to the Internet, but without the "safe hours" for the Internet.[68] Therefore,
the First Amendment rights of student broadcasters at public universities and
colleges should be reviewed with an eye toward how the content of on-line
student media might be controlled under this legal framework. While only one
court case specifically addressing censorship of student broadcasters at public
colleges could be found, an examination of FCC rulings involving student-run
stations and of court decisions involving public stations owned by universities
indicates that school officials have the right to control the content of
student-run stations to enforce FCC regulations, but not to suppress messages
they do not like otherwise.
The Student Press Law Center noted that one university conceded it
had "virtually no power" to censor the content of student programming on a
college radio station.[69] According to the SPLC account of the FCC
investigation,[70] University of Southern California at Santa Barbara officials
told the commission, "Under well established First Amendment legal principles,
there is little that the university can do to control the content of student
expression, whether in a campus newspaper or on campus radio stations."[71]
The FCC, as part of a crackdown on "indecent" broadcasts in the late
1980s, declared "indecent" a song that aired on KCSB-FM, a student-run station
for whom USCB regents were the licensee. The FCC ultimately accepted the
position by USCB officials that though the school had the right to control or
discipline students for programming that violated specific FCC regulations, such
as the ban on "indecent" language, it did not have the "right to control content
that complied with FCC regulations but with which school officials simply
disagreed or might find otherwise offensive."[72] In other decisions, the FCC
has held public universities liable for the actions of student broadcasters,
including the airing of "indecent" material.[73]
Many university-owned television and radio stations are not
student-run stations, but rather public stations run by non-student employees
serving as station managers or program directors.[74] A critical difference is
that a student-run station is a forum for student expression, which would make
it less susceptible to editorial control by school officials, while a public
station run by non-student employees would be subject to the editorial control
of the licensee.
This line of reasoning begins with Muir v. Alabama Ed. Television, in
which the Fifth Circuit dealt with the question of whether two state-owned
public television stations -- one of which was owned and operated by the
University of Houston -- could cancel the broadcast of a single, previously
scheduled television program based on concerns about its political content.[75]
In ruling that license holders of public stations have the right to control
their programming, the court held that the First Amendment does not preclude the
government from exercising editorial control over its own medium of expression.
However, the court said the degree of control that can be exercised consistent
with the First Amendment depends on the mission of the communicative activity
being controlled.
The majority and dissenting opinions, both citing Bazaar v.
Fortune,[76] acknowledged that "standard First Amendment doctrine condemns
content control by governmental bodies where the government sponsors certain
facilities through the use of which others are allowed to communicate and to
exercise their own right of expression."[77] In his special concurrence,[78]
Judge Rubin, citing Bazaar and Dickey v. Alabama,[79] noted, "If the state is
conducting an activity that functions as a marketplace of ideas, the
Constitution requires content neutrality. Thus, a state university may not
override editorial freedom of student newspapers."[80] Or, as Judge Johnson
phrased it in his dissent, the Fifth Circuit Court of Appeals in deciding Bazaar
had "concentrated on the particulars of the alleged censorship decision in the
context of the existing editorial format."[81] The Student Press Law Center
concluded that for student-run stations, Muir "strongly implies that censorship
of a student-run television station would be no more permissible than censorship
of a student newspaper."[82]
In 1989, the Eleventh Circuit Court of Appeals agreed with the
principle that the license holder has "sole programming discretion" if the
medium is "not designed to function as a pure marketplace of ideas."[83] The
case involved attempts by the president of Indian River Community College, a
Florida public school, to control the news content of WQCS, a non-commercial
educational station for which the college was the licensee. The plaintiffs --
the station manager and the program director -- contended that the president's
attempts to censor the news violated their First Amendment rights.
Relying on Muir v. Alabama, the court concluded that the station was
not intended to function as a marketplace of ideas,[84] and, therefore, the
president's control over news programming at the station could not have
curtailed the station employees' First Amendment
rights. Nothing in the U.S. Constitution, said the court, gives
employees the right to use the licensee's equipment for their own expression.
The appellants, as employees of the station, cannot
require the Trustees, as licensee, to air any particular view
over the
station. The Trustees have the broadcast license and thus
sole
programming discretion. It is the First Amendment rights of
the Truste
es as licensee that are being exercised by the operation of
WQCS, not
those of the appellants.[85]
In 1994, however, a federal district court in Washington followed the
reasoning in Schneider v. Indian River Com. College Foundation, but came to a
different conclusion.[86] In Aldrich v. Knab,[87] the court found that the
"campus radio station"[88] at the University of Washington had violated its
employees' First Amendment rights. The case revolved around the station
management's policy barring criticism of the University of Washington (the
licensee) and university officials. The court held -- as the other courts had
-- that the radio station was not a public forum, and, therefore, the licensee
"enjoyed relatively broad discretion under the First Amendment to regulate
speech at the station."[89] But, the court held, the station management could
not do so "based solely on the content of the speech."[90] The court said the
government may regulate speech in non-public forums "as long as the regulation
on speech is reasonable and not an effort to suppress expression merely because
public officials oppose the speaker's view."[91]
The court ruled that the policy barring criticism -- but not support
-- of the university and its officials was "content-based suppression of speech"
and that "suppression of particular news stories because of their content
constitutes the type of pure viewpoint discrimination prohibited by the First
Amendment."[92] This case differed from Schneider, the court said, because "the
plaintiffs have been allowed to use the defendants' equipment and license for
expression of all news and public service announcements on topics that the
volunteers consider to be of local interest, except those that might be critical
of the station or University of Washington."[93]
Even though on-line student publications are not licensed like
television or radio stations, these court opinions and FCC decisions have First
Amendment implications for student-run media in cyberspace. Barring a court's
rejection of the Communications Decency Act, student on-line publications will
be subjected to federal law concerning obscenity. Based on FCC rulings involving
student-run stations, university officials apparently could be held responsible
for obscenity and indecency violations on the Internet. University officials
then could censor or punish students for violations of federal law regarding
obscenity and indecency on the Internet. However, as with radio and television
stations run by students, public school officials could not lawfully censor
student expression simply because they did not like it.
III. PUBLIC UNIVERSITY LIABILITY FOR
LIBEL AND PRIVACY INVASION BY STUDENT PRESS
A number of writers have concluded that because public universities
are constitutionally prohibited from exercising editorial control over
student-run newspapers, they should be immune from legal liability for
defamatory or privacy-invading statements in those publications.[94] Those
colleges that do attempt to control content, however, should be held liable.
Court decision involving libel cases against student newspapers support that
contention. Meanwhile, FCC decisions and court rulings indicate that license
holders of radio and television stations are responsible for the actions of
those working at the stations. And two recent cases indicate that computer
information services will be held responsible for libel committed on their
networks if they attempt to control content.
In Milliner v. Turner, Southern University of New Orleans faculty
members sued the student-run newspaper after it called them "racists" and
"proven fools."[95] The Louisiana Court of Appeals ruled that the university was
not liable because it did not have the authority to censor the newspaper. "We
find the First Amendment . . . would bar [the university] from exercising
anything but advisory control over the paper, therefore, exempting the
university from any liability or responsibility."[96]
In Mazart v. State, the Pipe Dream, the student newspaper at the
State University of New York at Binghampton, ran a letter to the editor
identifying the two plaintiffs "as members of the gay community."[97] The New
York Court of Claims found that the publication constituted libel per se, and
that the editors "acted in a grossly irresponsible manner."[98] However, the
court concluded:
The court recognizes that the Pipe Dream and its
staff may be incapable of compensating claimants for any
damages flowing
from the libel. But, in light of the University's eschewing
control,
editorial or otherwise, over the paper and the
constitutionally imposed
barriers to the exercise by the University of any editorial
control over the
newspaper, the court must reluctantly conclude that the
relationship of the
University and the Pipe Dream is not such as would warrant
the imposition of
vicarious liability on the State for defamatory material
appearing in the
student newspaper.[99]
In contrast, the FCC consistently has ruled that "licensees are
ultimately responsible for their employees' violation of federal
regulations."[100] In a case involving numerous complaints against the
University of Pennsylvania student-run radio station, for example, the
commission said it could think of no reason "why as a general matter
noncommercial broadcasters should be insulated from the degree of control we
expect of commercial licensees."[101]
We do not mean to imply that extensive delegation
of authority by a licensee -- commercial or educational -- is
in
itself unworkable. Nor do we wish to discourage University
licensees
from operating student-run stations. We do emphasize,
however, that a
licensee, educational or otherwise, may not delegate and
subdelegate
authority over a broadcast facility and thereby insulate
itself from
the ultimate responsibility for the operation of the
station.[102]
Courts have indicated recently that computer information services
exercising control over content on their networks also will be held responsible
for libel committee on those networks, while those that do not exercise
editorial control will be immune from such liability. In Cubby Inc. v.
CompuServe Inc., a federal district court ruled that a computer service company
was a mere distributor of information and could not be held responsible for
defamatory statements made in news publications loaded into its computer library
by an independent third party.[103] But in Stratton Oakmont, Inc. v. Prodigy
Servs. Co.,the New York State Supreme Court in Nassau County ruled that Prodigy
was a publisher subject to libel laws because the on-line service "exercised
sufficient degree of editorial control" over the content of messages posted on
its bulletin boards.[104] In October 1994, an unidentified Prodigy subscriber
had posted to Money Talk several statements accusing the investment firm
Stratton Oakmont Inc. of criminal misconduct. Stratton Oakmont filed a $200
million libel lawsuit against Prodigy.
The court, relying on Cubby, emphasized that computer bulletin boards
should generally be regarded as distributors such as book stores and libraries,
which may be liable for the defamatory statements of others only if they knew or
had reason to know of the defamatory statements. The judge noted that Compuserve
had no opportunity to review publications posted to its electronic forum prior
to their uploading and exercised "little or no editorial control" over their
content.[105] Prodigy, however, was not such a passive conduit because it
advertised itself to the public and to its subscribers as controlling the
content of the bulletin board messages. By using technology and board leaders to
delete bulletin board messages on the basis of offensiveness and "bad taste,"
Prodigy was making editorial content decisions similar to those made at
newspapers. With that editorial control, the court said, comes increased
liability.[106]
As noted earlier, assuming that the Communications Decency Act is not
overturned by the courts, public universities may have no choice but to exercise
control over on-line student publications in order to satisfy federal law
regarding obscenity or indecent language on the Internet. However, as also
noted, on-line student publications are not licensed by the FCC, and, therefore,
universities would have no obligation to control other content in these
publications. Based on the cases discussed in this section, it can reasonably
be assumed that public universities that insist on controlling all of the
content of on-line students publications will be held responsible for defamatory
or privacy-invading statements made in those publications. Universities that do
not exercise such involved editorial control should be immune from such
liability.
IV. RATIONALES FOR EXTENDING
FIRST AMENDMENT PROTECTIONS TO CYBERSPACE PUBLICATIONS
The First Amendment provides the fundamental basis for the right to
free speech and a free press.[107] However, different First Amendment standards
have been applied to print and to broadcasting, with publishers enjoying broad
protection and broadcasters enjoying limited protection. For example, licenses
are required of broadcasters, but not of publishers. For more than 40 years,
broadcasters were required to devote a "reasonable" amount of time to covering
"controversial issues of public importance" in their service areas and to
provide a "reasonable opportunity" for significant opposing views to be
heard.[108] No such obligation can be placed on publishers.[109]
Under which First Amendment standard -- print or broadcast -- will
cyberspace publications be treated? Courts have yet to decide the question.
Congress, though, seems to be believe that in some respects (i.e., when dealing
with obscene and indecent language) the Internet should be treated as a
broadcast medium. The same fundamental First Amendment struggle has shaped the
development of other "emerging" media -- including telephone, radio, broadcast
television and cable television. At some point in their development, these media
have sought to secure the broad First Amendment protections afforded to print
publishers -- "the fullest freedom from regulation afforded by the First
Amendment's proscriptions against governmental restrictions on free speech and
freedom of the press."[110]
Justice Harry Blackmun observed in his concurrence in City of Los
Angeles v. Preferred Communications, Inc. that when considering where a new
communications medium fits under the First Amendment, courts should first
determine whether the characteristics of the new technology "make it
sufficiently analogous to another medium to warrant application of an already
existing standard or whether those characteristics require a new analysis."[111]
Does, then, "the existence of widespread computer-assisted communications --
cyberspace -- really raise novel legal issues" or does it raise the same issues,
"only in a different medium"?[112]
I. Trotter Hardy, a William and Mary College law professor, wrote,
"[E]very new medium is fraught with complex new legal questions, the most
fundamental among them being whether existing laws designed with other media in
mind should be applied to the new medium as well."[113] He concluded that "some
of the legal problems of cyberspace are indistinguishable from those that arise
in real space. For the most part, these situations are characterized by the use
of cyberspace as merely another means of transmission from individuals directly
to other individuals."[114]
Hardy and other writers contend that computer publications -- if not
all of cyberspace -- fit that description and should be accorded the same broad
First Amendment protections granted to print publishers. They contend that the
Supreme Court's two primary theories for government regulation of broadcast
communications content -- the NBC v. United States[115] "scarcity" rationale and
the FCC v. Pacifica Foundation[116] "intrusiveness" rationale -- do not appear
to justify government regulation of computer publications.
The scarcity argument seems irrelevant since computer publications do
not transmit over the public airwaves -- a precondition for the scarcity
rationale to apply. Said Ronald Palenski: "A computer publisher does not send
his information over a limited band or airwaves. Any individual or group can
become a computer publisher by obtaining a computer or access to a computer and
a modem and information to publish. The amount of these newsletters is not
limited by technology."[117]
Nor would such publications seem to fit the U.S. Supreme Court's
definition of "intrusive," according to these writers. Electronic information
services, said Phillip H. Miller, seem to "fit at the least intrusive end of the
spectrum alongside pay-per-view, dial-a-porn and other services that require an
initiating act or invitation to trigger transmission into the home."[118]
Palenski contended that computer publications -- which under his
definition are publications that exist solely on computer systems -- fall under
the U.S. Supreme Court's broad view of what is the "press." To bolster his
argument, he cited the Court's decision in Lovell v. City of Griffin, Ga.: "The
liberty of the press is not confined to newspapers and periodicals. It
necessarily embraces pamphlets and leaflets. . . . The press in its historical
connotation comprehends every sort of publication which affords a vehicle of
information and opinion."[119]
Palenski contended that "computer publications satisfy the definition
that the Court has given to what is to be covered by the First Amendment. By
their very nature, computer publications are a vehicle by which information can
be disseminated."[120] Also because of their similarity to newspapers, he
argued, computer publications "should have the least amount of restriction
necessary placed upon them."[121] "By deciding that computer publications will
have the same rights under the First Amendment as newspapers, information will
be dispersed throughout the nation in a more efficient manner so that the goal
of the First Amendment will become reality."[122]
V. CONCLUSIONS
The First Amendment rights of students at public universities and
colleges are well-established by federal and state courts. Where the publication
has been created as a forum for student expression, college authorities may not
exercise anything but advisory control over the editorial decisions of the
student editors. On-line student newspapers and literary magazines would
reasonably seem to fall within the broad view of forms of expression granted
these free press rights by the courts. Hence, the growing number of on-line
student publications should be afforded the same First Amendment rights as their
ink-and-paper forerunners. Universities adopting a hands-on attitude, in spite
of consistent rulings by the courts granting editorial control to the student
editors, could find themselves being held liable for defamatory and
privacy-invading statements made in those publications, while colleges that
abide by the courts' rulings should be immune from such liability.
However, Congress has muddied the First Amendment stream by treating
the Internet -- at least for the purposes of controlling obscenity and indecent
language -- as a medium to be regulated by the FCC. Barring the Communication
Decency Act being nullified by a court or repealed by Congress, public
universities may be forced to oversee and punish students for violations of the
CDA. This means that student editors may find themselves able to publish certain
material in print but not online. Court rulings, however, indicate that school
officials would face tougher legal challenges if they choose to control all the
content of on-line student publications. Exercising such editorial decisions
also would seem to put the universities at a greater risk of assuming liability
for tortious statements made in the publications. It would seem, then, to be in
the best interests of public universities and colleges if these cyberspace
publications were treated by Congress and the courts as having the same First
Amendment protections print publications have enjoyed.
The rationales for allowing greater governmental restriction of
broadcast media do not apply to on-line student newspapers and literary
magazines. These publications are not transmitted over finite public airwaves,
thereby overcoming the scarcity rationale used to limit the First Amendment
rights of broadcasters, nor are these publications as "pervasive" as radio or
broadcast television. They require the reader to take affirmative action akin to
purchasing a newspaper or magazine, dialing a 900-number or subscribing to a
cable-TV service.
Federal and state courts -- including the U.S. Supreme Court -- have
placed a high degree of importance on protecting the free speech and free press
rights of college students at public schools. To dilute those rights because
newsprint has been converted to a digital format would seem to defeat the ideals
expressed in dozens of court opinions and in the First Amendment itself. Indeed,
considering the increasing popularity of on-line student publications,
restricting the First Amendment rights of those editors would threaten the
student press's role in fully and fairly informing a democratic society.
[1] Student Press Law Center, Michigan School Outlines New
Cyberspace Policy, SPLC Reports, Fall 1995, at 13.
[2] The World Wide Web allows the user to click on highlighted words
or other data and be connected to additional files or documents related to the
highlighted word. See E. Krol, The Whole Internet: User's Guide & Catalogue
(1992).
[3] Electronic Publication Access and Electronic Publication Access
Procedures, Northwestern Michigan College Policies and Procedures Manual,
December 27, 1995.
[4] Id.
[5] In addition to the text of stories, some on-line student
newspapers are incorporating color photos, advertising, and video and sound.
[6] George Garneau, Campus Press Races Online: College Papers Move
Quickly onto the Web, Ahead of Many Mainstream Newspapers, Editor & Publisher,
April 22, 1995, at 72.
[7] See http://www.newslink.org for a list of campus daily and
weekly newspapers.
[8] Jane M. Von Bergen, Phasing out the Paper at Student Newspaper,
The Philadelphia Inquirer, March 2, 1996, at D1.
[9] Student Press Law Center, Traveling the Information
Superhighway, SPLC Reports, Spring 1995, at 20.
[10] Telephone Interview with Mike Hiestand, attorney for Student
Press Law Center (Feb. 26, 1996).
[11] Walt Potter, Free Speech on the Infobahn, Presstime,
July/August 1994, at 66.
[12] Telecommunications Act of 1996, Pub. L. No. 104-104 (1996).
[13] Media Law Committee, College Media Advisers, First Amendment
Danger Signals/Tips/Resources for Advisers of Student Publications 8 (revised
May 1992).
[14] Student Press Law Center, Law of the Student Press (2d ed.
1994).
[15] Id.
[16] Trujillo v. Love, 322 F. Supp. 1266 (Colo. 1971).
[17] Mississippi Gay Alliance v. Goudelock, 536 F.2d 1073, 1 Media
L. Rep. (BNA) 1949 (5th Cir. 1976), cert. denied, 430 U.S. 982, 95 S.Ct. 1678
(1977).
[18] Stanley v. Magrath, 719 F.2d 279, 9 Media L. Rep. (BNA) 2352
(8th Cir. 1983).
[19] Antonelli v. Hammond, 308 F. Supp. 1329 (D. Mass. 1970).
[20] 436 So.2d 1300 (La. App. 1983). Judge Garrison's first sentence
read: "I concur."
[21] Student Press Law Center, supra note 14, at 52.
[22] 408 U.S. 169, 180, 92 S.Ct. 2338, 33 L.Ed.2d 266 (1972).
[23] 408 U.S. at 180.
[24] Id.
[25] 410 U.S. 667 (per curiam), reh'g denied, 411 U.S. 960 (1973).
[26] Id. at 670.
[27] Id. at 671.
[28] 273 F. Supp. 613 (M.D. Ala. 1967).
[29] Louis Ingelhart, Freedom for the College Student Press 36
(1985).
[30] 273 F. Supp. 613 at 617, 618 (quoting Burnside v. Byars, 363
F.2d 744 (5th Cir. 1966).
[31] Antonelli v. Hammond, 308 F. Supp. 1329 (D. Mass. 1969).
[32] Id. at 1337 (emphasis added).
[33] 476 F.2d 570, aff'd as modified en banc,489 F.2d 225 (5th Cir.
1973), cert. denied, 414 U.S. 1135 (1973).
[34] Media Law Committee, supra note 13, at 9.
[35] Norton v. Discipline Committee of East Tennessee State
University, 419 F.2d 195 (6th Cir. 1969), cert. denied, 399 U.S. 906 (1970)
(literature urged students to "stand up and fight" and to "assault the bastions
of administrative tyranny"); Speake v. Grantham, 317 F. Supp. 1253 (S.D. Miss.
1970), aff'd, 440 F.2d 1351 (5th Cir. 1971) (per curium) (hoax notices that
classes would not meet two days before finals began); Jones v. State Board of
Education, 407 F.2d 834 (6th Cir.), cert. granted, 396 U.S. 817 (1969), cert.
dismissed, 397 U.S. 31 (1970) (leaflets urging boycott of fall registration).
[36] Student Press Law Center, supra note 14, at 34.
[37] Id. at 52.
[38] 308 F. Supp. at 1336.
[39] Id.
[40] 476 F.2d 570, 489 F.2d 225 (5th Cir. 1973), cert. denied 414
U.S. 1135 (1973).
[41] 476 F.2d at 576.
[42] Id. at 575.
[43] Id. at 575 (citing American Civil Liberties Union of Virginia
v. Radford College, 315 F. Supp. 893 (W.D. Va. 1970) (quoting Antonelli v.
Hammond, 308 F. Supp. 1329 (Mass. 1970).
[44] Id. at 576 (quoting Cohen v. California, 403 U.S. 15, 25
(1971).
[45] 519 F.2d 257 (5th Cir. 1975).
[46] Id. at 259.
[47] Id. at 260.
[48] Id. at 260, 261.
[49] 441 N.Y.S.2d 600 (N.Y. Ct. Cl. 1981).
[50] 436 So.2d 1300, 1303 (La. App. 1983).
[51] 536 F.2d 1073, 1 Media L. Rep. (BNA) 1949 (5th Cir. 1976),
cert. denied, 430 U.S. 982, 95 S.Ct. 1678 (1977).
[52] 1 Media L. Rep. (BNA) at 1950, 1951.
[53] 829 F.2d 662 (8th Cir. 1987).
[54] Sinn v. Daily Nebraskan, 638 F.Supp. 143, 146, 12 Media L. Rep.
(BNA) 2340, 2342.
[55] 732 F.Supp. 1410 (E.D. Mich. 1990).
[56] Id. at 1415.
[57] Id. at 1416.
[58] Id.
[59] 308 F. Supp. at 1337.
[60] Id.
[61] 322 F. Supp. 1266 (Colo. 1971).
[62] Id. at 1270.
[63] 476 F.2d 570 at 575.
[64] Id. at 579.
[65] Id. at 580.
[66] 410 U.S. 667 at 1325.
[67] President Clinton signed the Telecommunications Act into law on
Feb. 8, 1996. A coalition led by the American Civil Liberties Union has since
challenged a section of the law -- the Communications Decency Act -- which would
criminalize the transmission of "indecent" material to minors over computer
networks. On Feb. 15, a federal judge in Philadelphia issued a partial temporary
restraining order prohibiting enforcement of the "indecency" provision of the
CDA. He declined to enjoin, however, provisions dealing with "patently
offensive" communications. A three-judge panel began meeting March 21 to
evaluate the constitutional validity of the CDA and to consider a permanent
injunction against its enforcement.
[68] Sandy Davidson, Groups challenge online censorship, Media Law
Notes, Winter 1996, at 8. Davidson notes that the Communications Decency Act
punishes for the following: Whoever -- (1) in interstate or foreign
communications knowingly -- (A) uses an interactive computer service to send to
a specific person or persons under 18 years of age, or (B) uses any interactive
computer service to display in a manner available to a person under 18 years of
age, any comment, request, suggestion, proposal, image, or other communication
that, in context, depicts or describes, in terms patently offensive as measured
by contemporary community standards, sexual or excretory activities or organs,
regardless of whether the user of such service placed the call or initiated the
communication; or (2) knowingly permits any telecommunication facility under
such person's control to be used for an activity prohibited by paragraph (1)
with the intent that it be used for such activity. . . .
[69] "KCSB-FM responds to FCC investigation," Student Press Law
Center Report, Fall 1987, at 28.
[70] The FCC decision was not officially reported. The only
available FCC documentation was the decision in which the commission declared as
indecent the song in question. See 2 F.C.C.2d 2703 (1987).
[71] Student Press Law Center, supra note 14, at 86.
[72] Id.
[73] However, those cases will be discussed in Part III, which deals
with university liability for student media.
[74] Student Press Law Center, supra note 14, at 87.
[75] 688 F.2d 1033 (5th Cir. 1982), cert. denied, 460 U.S. 1023
(1983).
[76] 476 F.2d 570, aff'd as modified en banc, 489 F.2d 225 (5th Cir.
1973), cert. denied, 416 U.S. 995 (1974).
[77] Id. at 1043.
[78] In a 1989 case relying on Muir, the Eleventh Circuit explained
that Muir was an en banc decision before 22 judges. Judge Hill's opinion was
joined by nine judges, as well as another judge writing separately but
concurring in the opinion -- for a total of 11 judges. Judge Rubin wrote a
special concurrence that was joined by three judges. Under the principle that,
absent a majority opinion, the narrowest concurring opinion is the holding of
the case, Judge Rubin's opinion is the law of the circuit. See Schneider v.
Indian River Com. College Foundation, 875 F.2d 1537, 1541 (11th Cir. 1989).
[79] 273 F.Supp. 613 (M.D. Ala. 1967).
[80] 688 F.2d at 1050.
[81] Id. at 1058.
[82] Student Press Law Center, supra note 14, at 88.
[83] Schneider v. Indian River Com. College Foundation, 875 F.2d
1537, 1541 (11th Cir. 1989).
[84] It should be noted that the radio station was not run by
students. Student interns assisted the paid staff, some of whom taught. Thus,
according to the court's description, the radio station was not a forum for
student expression entitled to the First Amendment protections alluded to by the
Fifth Circuit in Muir and Bazaar.
[85] 875 F.2d at 1541.
[86] The court specifically distinguished Muir as a programming
rights case and said it did not apply, noting that the case at issue was not
about KCMU's right to control its own programming. Instead, the court said it
found Schneider to be more similar to the one before it.
[87] 858 F.Supp. 1480 (W.D. Wash. 1994).
[88] DJs still spinning after temporary terminations, SPLC Report,
Winter 1994-95, at 8, 13.
[89] 858 F. Supp. at 1493.
[90] Id.
[91] 858 F. Supp at 1493, 1494 (quoting Perry Educational Assoc. v.
Perry Local Educators' Assoc., 460 U.S. 37, 44, 74, L. Ed. 2d 794, 804, 103 S.
Ct. 948, 954 (1983).
[92] 858 F. Supp. at 1493.
[93] Id. at 1492.
[94] See Ruth Walden, The University's Liability for Libel and
Privacy Invasion by Student Press, 65 Journalism Q. 702 (Fall 1988); Note, Tort
Liability of a University for Libelous Material in Student Publications, 71
Mich. L. R. 1061 (1972); Law of the Student Press 159 (Student Press Law Center
1994).
[95] 436 So.2d 1300, 1303 (La. App. 1983).
[96] Id.
[97] 441 N.Y.S.2d 600 (N.Y. Ct. Cl. 1981).
[98] Id. at 604.
[99] Id. at 606.
[100] Student Press Law Center, supra note at 86.
[101] Trustees of the University of Penn., 69 F.C.C.2d 1394, 1420
(1978), recon. denied, 71 F.C.C.2d 416 (1979).
[102] 69 F.C.C.2d at 1420.
[103] 776 F.Supp. 135 (S.D.N.Y. 1991).
[104] 23 Media L. Rep. (BNA) 1794 (N.Y. Sup. Ct. 1995).
[105] Id. at 1797.
[106] Id. at 1796.
[107] U.S. Const. amend I. "Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof; or
abridging the freedom of speech, or of the press; or the right of the people
peaceably to assemble, and to petition the Government for a redress of
grievances."
[108] Red Lion Broadcasting Co., Inc. v FCC, 395 U.S. 367 (1969).
[109] See Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241, (1974).
[110] Phillip H. Miller, New Technology, Old Problem: Determining
the First Amendment Status of Electronic Information Services, 61 Fordham L.
Rev. 1147 (1993).
[111] 476 U.S. 488, 496 (1986).
[112] I. Trotter Hardy, The Proper Legal Regime for "Cyberspace," 55
U. Pitt. L. Rev. at 994 (1994).
[113] Id. at 996.
[114] Id. at 1053.
[115] 319 U.S. 190 (1943).
[116] 438 U.S. 726 (1978).
[117] Ronald Palenski, Computer Publications and the First
Amendment, 25 Law/Technology, at 1, 16 (1992).
[118] Miller, supra note 110, at 1192.
[119] Lovell v. City of Griffin, Ga., 303 U.S. 444, 452 (1938).
[120] Palenski, supra note 117, at 13.
[121] Id. at 14.
[122] Id.